Court While Waiting For Charges Refund

[emandcole]

Thanks for the quick direction. Ok, the date of their default letter was a Thursday and I think in your favour the bank 'forgot' that February is a short month. At best if the default was posted on the day it was written and sent first class they have not provided enough time so can confirm it is indeed invalid.

 

However, it appears that the bank also rely on this default to be a termination as they ask for the return of all items associated with the account such as your cards.

 

To my mind this was an unlawful rescission of contract and a situation that offers you some leverage.

 

Can you tell me, were the arrears asked for on the default notice or did they demand the full balance?

[Linian]

Hows this?

 

http://i940.photobucket.com/albums/ad242/yursaduian/Dletter.jpg

[emandcole]

A letter prior to the default informing you of various consequences. Referring to the default notice posted earlier you rightly crossed out figures, did they ask you for an arrears amount (say 3 or 4 months payments) or the full balance?

[Linian]

Sorry, I didn't realise you meant that one.

 

Its still there in post 7. I rubbed out a few bits but not what they were demanding ie the overdraft in full.

 

Actually, looking again at that notice, they again say "the agreement requires....."' in fact the part headed "Provision breached" specifically seperates "the agreement" from the OD does it not? Nowhere does it state that the agreemnet IS the OD?

[emandcole]

Ok thanks, to be honest the fact they've also asked you for the full balance would make this default notice a termination notice also.

 

In that event you would have writtten back to them shortly after and accepted their termination wouldn't you? You did just that didn't you . Nationwide is a huge organisation and quite often letters don't end up getting to the right department.

 

Quite simply the failure of a default notice to be accurate invalidates the notice, the fact that they've also terminated means technically they are only entitled to claim the arrears, minus any unlawful charges (more useful for credit card penalty sums) than bank charges right now.

 

The problem you've got is that Nationwide used the default to demand not just arrears but the entire OD balance. However, being neutral on this I guess they can claim the OD balance are arrears and as such the figure demanded would be appropriate. Hence, accepting termination only entitles the creditor to claim arrears, but if this amounts to the same balance as they added on the default you'd gain nothing.

 

Here's what I would do, take it or leave it obviously

 

 

• I feel your best bet is to use the invalid default notice as a main defence issue.
  
• Remind them you wrote and accepted their termination which on the back of an invalid default notice would amount to an unlawful rescission of contract giving you right to counter claim for injury to credit, a not insubstantial sum that would see them paying you more money than they are trying to claim from you. Hence, they may back off and drop the case if it's going to potentially go in your favour.
  
• Await the CPR request results for disclosure to check they took advantage of the OFT Determination and exemptions detailed earlier on.
  

[emandcole]

Just thought, after the default was issued have you made any further payments to this account?

[Linian]

Thanks again emandcole

 

Actually, because the default notice was so old, I wasn't sure if it was the one they were relying on so I've asked them for sight of the one in their POC. (so cant really ask them to find the letter I wrote )

 

That said, ES confirmed the termination in their letter so either way, the account has been terminated on the back of an invalid default notice.

 

No money has moved in or out of the account btw since this all started.

 

Also btw, I've just asked this on another thread so I hope I dont get told off but how are the 14 days calculated? Is it 14 callendar days or 14 days less Sat and/or Sun (or bank holidays eg) and also, is it compliant if it states 21 days form the date of this letter (or date of service) or MUST it be a callendar date? Any idea and is it in any legislation?

 

Thanks again for your input

[emandcole]

Thanks again emandcole

 

Actually, because the default notice was so old, I wasn't sure if it was the one they were relying on so I've asked them for sight of the one in their POC. (so cant really ask them to find the letter I wrote )

 

Good idea, be funny if what they produce is different and they state to the court that's what they sent you!

 

That said, ES confirmed the termination in their letter so either way, the account has been terminated on the back of an invalid default notice.

 

Absolutely.

 

No money has moved in or out of the account btw since this all started.

 

Good, had you made any payments the creditor could have argued you didn't accept their rescission and score some points against you for their mistakes. Make sure they don't get anything now, sure you won't.

 

Also btw, I've just asked this on another thread so I hope I dont get told off but how are the 14 days calculated? Is it 14 callendar days or 14 days less Sat and/or Sun (or bank holidays eg) and also, is it compliant if it states 21 days form the date of this letter (or date of service) or MUST it be a callendar date? Any idea and is it in any legislation?

 

That's ok, good you're reading up as important you understand the process.

 

Thanks again for your input

 

Very welcome

[emandcole]

Have a quick read of this, it'll clarify things a little.

 

87(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

1. The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

[Linian]

emandcole,

 

I'm voting for you at the next election!!

 

Edited January 27, 2010 by Linian

[emandcole]

"If it wasn't for politics I'd be a politician."

 

Me - July 2004

 

Thanks for the vote, all any of us ask for on cag is that all is fair, above board and conducted within the laws of the land. This is something the powerful finance corporations just don't seem to get. If I did run government you can be sure that would change pretty quickly but sadly I think these instititions have too much power even for a government to interfere with.

 

You've only got to look at the disgrace of the RBS board threatening to resign if they didn't get their way with bonuses. Worse than a load of screaming toddlers. Like we should be concerned, we'd just bailed the idiots out for an absurd sum of money that we'll all be paying for in the generations to come.

 

And as for the Kraft 'buyout' of Cadbury? You heard that one?!

[Linian]

Actually I haven't had a chance to look at that one in depth. will have to have a look into it.

 

I've seen plenty of others though - like the directors of Tescos for example - no political influence or conflicts of interest there then!!??

 

Anyway, we mustn't get political. This forum is precisely as you said

 

"all any of us ask for on cag is that all is fair, above board and conducted within the laws of the land. This is something the powerful finance corporations just don't seem to get."

 

Perfectly put!

 

We are only using the law. No dirty tricks, no underhanded tactics, no harrassment or intimidation.

 

In the words of the immortal John 'Birdman' Bryant

 

“The reason men are silenced is not because they speak falsely, but because they speak the truth.

This is because if men speak falsehoods, their own words can be used against them; while if they speak truly, there is nothing which can be used against them - except force.”

 

Each and every success through lawful means, no matter how trivial, is a victory against the liars and cheats in business.

We all know we're up against a massive beast - but as another wise man once asked

 

"How do you eat an elephant?" - and the answer of course is;

 

"One mouthful at a time!"

 

Good luck!

Edited January 29, 2010 by Linian